Tag: property transfer
“This is a case about a ‘zombie’ deed.”
So begins the decision in Thompson v. Elliott Estate, 2020 ONSC 1004, a decision of Justice MacLeod-Beliveau.
The case addresses the effect of “zombie” deeds, and whether such a deed can result in the severance of a joint tenancy.
Justice MacLeod explains that a “zombie” is a folklore reference to a person who is reanimated through magic after their death. A “zombie deed” is a transfer of an interest of land that is registered after the death of the grantor as if the grantor was alive.
In the case in question, Husband and Wife owned a home as joint tenants. Wife signed an Acknowledgement and Direction, transferring her interest in the home to herself, for the purposes of severing the joint tenancy. However, through lawyer inadvertence, the transfer was not registered with the Land Registry Office until after Wife’s death.
If the joint tenancy was severed, Wife’s half-interest in the home would pass through her estate to her children from a prior marriage. If the joint tenancy was not severed, it would pass to Husband.
Husband argued that the registration was improper, and therefore did not sever the joint tenancy.
The court agreed that the registration of the transfer after Wife’s death was improper. The lawyer should not have registered it. In many cases, the registration would be rejected by the Land Registry Office. However, the LRO is often not able to determine whether the registration is improper. In the case before the court, the lawyer registering the transfer had falsified many of the “law statements” required when registering the transfer.
Although the transfer was improperly registered, the court found that the joint tenancy was, however, actually severed. A joint tenancy can be severed by a transfer of a joint interest to oneself. Whether a joint tenancy is severed is a question of fact based on the evidence.
Of note is the holding that it is the “delivery” of the transfer and not the actual registration of the transfer that determines whether the joint tenancy is severed. The court held that there was sufficient evidence to establish that Wife clearly intended to sever the joint tenancy by signing the Acknowledgment and Direction and by giving immediate and unconditional instructions to her lawyer to register the transfer.
Zombie deeds are sometimes used to avoid probate taxes and fees. The deceased signs the Acknowledgment and Direction before death, but, on title, remains owner of the property. After death, the deed is registered to transfer title to intended beneficiaries. This practice is improper.
Thanks for reading. Have a great weekend.
We have previously blogged on Fraudulent Conveyance. This cause of action can, on occasion, be met with a defence that the conveyance of property was in furtherance of an estate plan and, therefore, without fraudulent intent. As with most cases, the specific facts of the case will determine whether the defence can succeed.
In Bank of Montreal v. Real Marleau, the Saskatchewan Court of Queen’s Bench was prepared to entertain the notion that the defendant’s assertion might actually be true, but nonetheless, determined that the conveyance ought to be aside.
The estate planning defence was considered and again rejected in Re Whetstone, 1984 CarswellOnt 157. In this case, the estate planning defence relied on evidence from the family’s solicitor. The court noted, at paragraph 28,
“In the circumstances, it is not material that the family’s solicitor recommended the conveyance based on general principles and not on actual knowledge of the company’s financial position; the intent we are concerned with is not that of the family’s solicitor, but of [the defendant].”
Lastly, in an unreported decision of the Ontario Superior Court of Justice, RBC v. Nicolau, the defence was considered but not accepted:
“In this case, Mr. Nicolau testified that the transfer was for estate planning purposes. He submits that there was therefore no fraudulent intent.
RBC referred the Court to jurisprudence in which the estate planning defence was raised. I agree with the submissions of RBC that this defence must fail. While the transfer may have also satisfied Mr. Nicolau’s estate planning goals, this explanation is not, in my view, sufficient to displace the inference of fraudulent intent given the timing of this estate planning and the presence of the badges of fraud. Accordingly, I find that the April 16, 2012 conveyance of 1 Lister Drive to Gabriel Nicolau was fraudulent, and the provisions of the Act are therefore applicable.”
Thanks for reading,